Quiz about Smelly Chickens. Murphey v Beaudesert Shire Council [2002] QDC 292

Transcription

1 Quiz about Smelly Chickens Murphey v Beaudesert Shire Council [2002] QDC 292

2 Quiz about Smelly Chickens Murphey v Beaudesert Shire Council [2002] QDC 292 With increasing international and domestic attention on environmental matters, the Federal and State governments have introduced legislation to protect Australia s environment from the destructive effects of commerce. The Queensland government developed the Environmental Protection Act 1996 to strike a balance between economic and environmental needs. The Act allows for Environmental Protection Orders to be instigated when a person or corporation is unlawfully harming the environment and creating environmental nuisance. Often neighbours, who are affected by pollution caused by industry, will complain to the Council. If the Council is satisfied that there is cause for action, they will issue an Environmental Protection Order (EPO), with the purpose of securing the compliance of the offending person or corporation. In this case, the appellants were issued an EPO that restricted their farming activities due to distasteful smells. When the appellants asked the Council to review the EPO, the Council refused to lift the order because of how the neighbours were being affected. The appellants then took the matter to court, requesting a review of the EPO and an order for it to be set aside.

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4 The Quiz 1. What is the case name and citation? 2. Where was the case heard? 3. Who was appellant? 4. Who was the respondent? 5. What date was the case heard? 6. Who was the judge? 7. Who was the counsel for the appellant? 8. Who was the counsel for the respondent? 9. What were the two key pieces of legislation considered by the court? Tip: The answers to the above questions can be found in the headnote of the case. The headnote is the summary at the beginning of the case. 10. Give a brief summary of the facts. 11. What did the judge find? Tip: Look at paragraph Did the judge give any reasons for his decision? If so, what were they?

5 13. What two cases have since considered Murphy v Beaudesert Shire Council? Tip: You can use the note-up function on AustlII. 14. Outline the key issues in one of the two cases that considered Murphy v Beaudesert Shire Council. Tip: The answers to the above questions can be found in the judgement of the case. The judgement is the main body of the case. Quiz about Smelly Chickens - Murphey v Beaudesert Shire Council [2002] QDC 292

6 The Case Here is an extract of key sections from the case. Tip: You will have to download the full case to answer all the questions! Headnote DISTRICT COURT OF QUEENSLAND CITATION: Murphey v Beaudesert Shire Council [2002] QDC 292 PARTIES: Leonard Edward Murphey and Karen Alys Murphey Appellants v Beaudesert Shirt Council Respondent FILE NO/S: DIVISION PROCEEDING: Appeal ORIGINATING COURT: Environmental Planning DELIVERED ON: 28 October 2002 DELIVERED AT: Brisbane HEARING DATE: October 2002 JUDGE: Skoien SJDC ORDER: CATCHWORDS: COUNSEL: SOLICITORS: Appeal adjourned to date to be fixed. Adjournment to allow trial of measures to counter environmental law; environmental protection order; intensive poultry raising sheds; odour; dust. Mr J Haydon for appellant Mr T Trotter for respondent Carter Capner for appellant Corrs Chambers Westgarth for respondent

7 Judgement The Facts The farm began operating in June 1998 and at all times it contained around 90,000 chickens. Paragraph 39: Mrs Ahmat s house is about 300 metres from the sheds and west-south-west of them. Her evidence was that since the poultry farm began operations she has regularly and frequently detected a horrible, objectionable smell, and it is simply breath-taking. She described it as a rotten meat smell, mixed with urine. It can last an hour or two or it can last from morning to night, and even into the night. It has adversely affected her lifestyle in that she has to keep her eastern windows shut. It adversely affects her appetite and her ability to entertain guests. She now suffers from eye irritations and allergies. Gardening is not possible when the odours are present. She and her husband have attempted, without success, to sell their property, on which they had intended to live out their days. She also complains of dust (probably feather particles) but I understand this to be more of a mild annoyance. Paragraph 40: Mrs Keenan lives due south of the sheds, her house being about 700 metres distant. She gave evidence of similar offensive odours at her house. They vary in intensity but are sometimes severe enough to seriously disturb her lifestyle. When present at Mrs Ahmat s house she once experienced the odour so strongly that she felt nauseated and lost her appetite and she also experienced a persistent eye irritation. She has no doubt that these odours emanate from the sheds and indeed when exposed to these odours closer to their source her discomfort is considerably greater than when at home. She also has seen dust (sometimes quite dense) coming from the sheds. Quiz about Smelly Chickens - Murphey v Beaudesert Shire Council [2002] QDC 292

8 Paragraph 41: Mr Bryde, whose house is some 450 metres south-south east of the sheds also experiences the same sort of problems from odour from the sheds. They are sometimes sufficiently serious to restrict his use of the northern part of his house. The effect on him is considerably less than on Mrs Ahmat or Mrs Keenan. He also has seen dust particles in the air coming from the sheds Judge Skoien s Decision Paragraph 51: To enable that trial to take place I think it appropriate to adjourn the appeal. That will have the effect of extending the stay of the EPO ordered by His Honour Judge Quirk on 9 November The trial should be long enough to allow a proper evaluation of its effect. In my opinion at least three batches of chickens should be raised during the trial. Paragraph 53: I hope it is unnecessary to add that in cases such as this all interested parties must have regard to some obvious matters. First, as dictated by the law and good neighbourliness, the appellants cannot unreasonably degrade the lifestyle and property values of local residents. Second, local residents cannot expect a rural environment to be absolutely free of odours and dust which are part and parcel of rural life which nowadays can encompass intensive animal husbandry. Third, the parties ought to realise that restrained and polite contact is probably essential to the conduct of a proper trial. For example, should the Council retain experts, they ought to confer with the appellants experts. Furthermore, should a local resident or Mr Halasz consider that an unreasonable odour or dust escape is present, prompt notice of that to the appellants will give them the opportunity of investigating the complaint. Fourth, I hope it will not be necessary to make a formal order giving parties and their experts reasonable access to each others properties. Good sense must prevail.

9 Answers 1. What is the case name and citation? Murphey v Beaudesert Shire Council [2002] QDC Where was the case heard? Brisbane 3. Who was the appellant? Murphey 4. Who was the respondent? Beaudesert Shire Council 5. What date was the case heard? October Who was the judge? Skoien SJDC 7. Who was the counsel for the appellant? Mr J Haydon 8. Who was the counsel for the respondent? Mr T Trotter 9. What were the two key pieces of legislation considered by the court? Environmental Protection Act 1996 (EPA) Environmental Protection Regulation 1998 (EPR) 10. Give a brief summary of the facts. The appellants owned a chicken farm, where they raised approximately 540,000 chickens a year. The odour from these chickens was described by a neighbour as horrible, objectionable and smelling akin to rotten meat mixed with urine. The appellants acquired approval from the Beaudesert Council and tried to comply with the environmental legislative provisions. Neighbours of the farm complained to the Council about the odour. When the Council wrote to the appellants about complaints of the smell, the Quiz about Smelly Chickens - Murphey v Beaudesert Shire Council [2002] QDC 292

10 appellants hired a company that was an expert in measuring odours. The company produced a report, which explained that the farm was well operated and the odour emissions were acceptable. On 8th of August, 2001, the Council issued an Environmental Protection Order (EPO) to the appellants. This was because the appellants had allegedly failed to keep the odour at an acceptable level. The effect of the order was to ensure that if the appellants did not comply with the EPO by the 10 March 2002, they could no longer operate their farm. The appellants asked the Council to review the EPO, which the Council carried out. However, the Council found that the EPO should remain intact. The appellants, on the other hand, wanted the court to review the Council s decision about the EPO and vary or set aside the EPO. 11. What did the judge find? Considering the case, the judge found that the length of the Environmental Protection Order should be extended and the trial should be adjourned to a later date agreed between the parties. 12. Did the judge give any reasons for his judgment? If so, what were they? The judge acknowledged that the appellants were allowed to create as much distasteful smells as industry required on their own property. Problems arose, however, when the smells escaped the boundaries of the farm and affected the neighbours

11 His Honour adjourned the case until the appellants had been provided a reasonable timeframe to trial a cheap and simple measure to alleviate the problem. He referred to the evidence, which showed that the building of hay bale walls could disperse the odours. The effect of his decision was twofold. Firstly, the Council was not allowed to prevent the farm from operating, and secondly, EPO was not lifted. 13. What two cases have since considered Murphy v Beaudesert Shire Council? Example Cases: Crowther v State of Queensland [2002] QPEC 79 Ebborn v Esk Shire Council & Ors [2007] QPEC 70 Quiz about Smelly Chickens - Murphey v Beaudesert Shire Council [2002] QDC 292

12 SUPREME COURT OF QUEENSLAND LIBRARY Enquiries: aladin@sclqld.org.au Facsimile: Web: 4th Floor, The Law Courts, 304 George Street, Brisbane, Queensland, Australia PO Box 15019, CITY EAST, Queensland, 4002, Australia.